Human rights: a straitjacket on liberty

Nowadays, people claim a human right to many things. Prisoners claim a human right to vote. Convicted immigrants resisting deportation claim a human right to family life. Victims claim a human right to damages. Travellers claim a human right to roam. Benefit claimants claim a human right to welfare. The ill and infirm claim a human right to medical and social assistance. I could go on. Today, it’s fair to say that somebody wanting something can usually frame its receipt as the performance of a human right.

The essence of these human-rights claims is an assertion that the claimant has a legal right to something from the state. Whether each claim is meritorious is neither here nor there; what matters is that the claim is made on the basis of there being a human right to it. This human-rights discourse is of a recent vintage and gained currency during and after the Second World War with the publication of Hersch Lauterpacht’s influential book, An International Bill of the Rights of Man (1945), the adoption by the United Nations of the Universal Declaration of Human Rights (1948) and the drafting of the European Convention on Human Rights (1950).

Although the human-rights discourse was in abeyance for several decades after the Second World War, it has come to the fore of legal and political thinking in recent years. In 1998, the UK Human Rights Act was passed by the Labour government with cross-party support. Even now, for all the gnashing of teeth by the Conservatives over decisions of the European Court of Human Rights, the Conservatives remain committed to the human-rights discourse; it’s just that they prefer the British to the European version. Damian Green, UK police and criminal-justice minister, recently observed that ‘there is absolutely a Conservative case for human rights’. And he directed his ire at those who seek to question the worth of human rights: ‘The whole political spectrum in this country believes in human rights. This should not be a political issue in a country like Britain.’

The consensus over human rights needs interrogating because Conservative Eurosceptic arguments over the European Convention on Human Rights are apt to confuse rather than clarify. Similarly, the Labour Party’s ‘unswerving support for the Human Rights Act’ as being ‘core to what we believe in as a party’ is usually justified with unhelpful tub thumping and a nationalistic massaging of history. So, Sadiq Khan, Labour’s shadow justice secretary, states that he is ‘enormously proud of how [human rights have] improved countless people’s lives in this country and protected hundreds of millions of citizens across Europe’. And he claims that ‘human rights are an ancient British tradition’ that dates back 800 years to Magna Carta, ‘the world’s first bill of rights’.

Khan is not alone in massaging history in order to claim that human rights are like a vintage cask of warm British beer. The success of this trick rests on the failure to note the fundamental difference between human rights and the natural-rights discourse that originated from the arguments of English, European and American writers such as John Locke (1632-1704), Immanuel Kant (1724-1804), Tom Paine (1737-1809), Thomas Jefferson (1743-1826) and Alexis de Tocqueville (1805-1859). Their ideas created the intellectual climate for Western democracies to develop. But in contrast to what was to come with human rights, the only thing these natural-rights advocates sought from the state was greater freedom and liberty. The advocates of natural rights were concerned to restrict the state’s influence so that democracy could flourish for the benefit of individuals and society.

In pursuit of restricting the state and expanding the sphere of personal autonomy, natural-rights advocates championed freedom of conscience, freedom of speech, freedom of the press, the right of assembly and rights of due process concerning arrest, detention and criminal trial. Insofar as each right sought anything from the state, it was only the limitation of the state’s power. The clearest constitutional expression of this approach is the American Bill of Rights which took effect in 1791, with the First Amendment, in particular, clipping the power of Congress by preventing it from ‘abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble’. The motivation for restricting the state’s ambit wasn’t a desire to weaken the state; it was a desire to curtail the state’s influence so that human potential could be fulfilled.

Although the word ‘rights’ appears in ‘natural rights’ and ‘human rights’, the two concepts are profoundly different. One seeks to restrict the power of government and the other seeks to expand it. Whereas natural rights seek freedom from the state, human rights seek the state’s protection and assistance. More importantly, and this is the point rarely appreciated by today’s human-rights industry, whereas natural rights made democracy possible, the human-rights discourse is securing democracy’s emasculation. Democracy can only thrive if three conditions are satisfied: (a) man is treated as rational, (b) the state is restrained and (c) politics is freed of legal constraints. Whereas the natural-rights advocate champions each condition, the human-rights advocate assumes the first condition is impossible and the next two are undesirable.

Rational man

Tom Paine, an English radical who participated in the American Revolution, wrote Rights of Man in defence of the French Revolution of 1789. His celebration of natural rights was premised on his belief in human rationality. He noted that ignorance, once dispelled, could not be re-established – ‘[it] is only the absence of knowledge’ that could keep a man ignorant. He observed that while man ‘may be kept ignorant, he cannot be made ignorant’. Truth, said Paine, is so irresistible ‘that all it asks – and all it wants – is the liberty of appearing’.

Paine’s recognition of man’s rationality led to his celebration of natural rights. For if truth needed only to be revealed in order to be supported, then man needed freedom to seek it, discuss it, promote it and act on it. Left to his own devices, man would find truth and cooperate with his fellow citizens to create a mutually beneficial society.

With a human-rights approach, however, man is seen as less than rational. From this perspective, if man is left to his own devices, then all sorts of negative consequences follow: minorities tend to be oppressed by majorities; the weak tend to fall prey to the powerful; the vulnerable tend to suffer at the hands of the strong; and the poor tend to be exploited by the rich. There is no place in this world for natural rights which would sanction oppression, inequality and exploitation. Lord Bingham (1933-2010), one of the UK’s most influential judges of recent decades, doesn’t expressly claim that man is irrational, but man’s imperfections are certainly central to his support for human rights, which he claims are necessary to protect ‘the vulnerable and outcast members of society… children, mental patients, immigrants, asylum seekers, despised racial minorities, prisoners and criminals’ (1).

The human-rights discourse is premised on the need to protect man from himself. Unsurprisingly, the Second World War provided an impetus for human-rights arguments. Some 150 years after Paine’s Rights of Man, HG Wells published his own Rights of Man in 1940. But his book is no celebration of human rationality. He promoted human rights after being ‘stirred profoundly by those outrages upon human dignity by the Nazis’.

Where Paine and the American and French revolutionaries had celebrated natural rights as a means of furthering humanity, the European Convention on Human Rights, drafted in the wake of the Second World War, was promoted by statesmen scared, as HG Wells had been, by man’s inhumanity to man. Speaking in 1948 in The Hague, Winston Churchill noted the need for a human-rights charter to avoid the evils of ‘totalitarian systems, whether Nazi, Fascist, or Communist’.

The restrained state

The state’s scope is a mirror image of how man is viewed. If man is rational, the state’s scope can be restricted. If man is not rational, then the state will need to intervene more. Tom Paine, in Common Sense (1776), noted the relationship between man and the state when he contrasted society with government: ‘society in every state is a blessing, but government, even in its best state, is but a necessary evil’. Without being under the watchful eye of its citizens, a government ‘purloins from the general character of man, the merits that appertain to him as a social being’.

Although government is a ‘necessary evil’, it is important to note that the state has a significant role to play. For as Paine recognised, men come together to secure through the state those things that can only be provided by the state. Policing and defence are obvious examples but the state needs to be involved in other issues for the mutual benefit of its citizens. Paine, for example, drew up a 14-point plan of tax and spending reform which included a progressive taxation plan, featuring increased spending on poor relief the education of over a million children. However, any such interventions would be motivated by a desire to allow man’s instincts to flourish. A motivation premised on man’s rational behaviour will remain limited.

The human rights advocate, however, is content with a larger state. Lord Bingham rightly observed that ‘the biggest impact of the Human Rights Act is… a subtle but significant re-calibration of the relationship between the individual and the state’. Keir Starmer QC, the former director of public prosecutions (DPP), spells out what this ‘re-calibration’ amounts to in an article drawing attention to the important difference between a natural-rights approach, which he refers to as being about civil liberties, and human rights: ‘It is often thought that civil liberties and human rights are two sides of the same coin. They are not. Civil liberties protect the individual from the state by restricting the circumstances in which the state can interfere in the affairs of its citizens. Human rights, in contrast, not only protect the individual from the state but also oblige the state, in carefully defined circumstances, to take positive steps to protect its citizens. This distinction is important. The Human Rights Act entrenches positive obligations in our law.’ (2)

Starmer argues that state interventions occur ‘in carefully defined circumstances’, but when human-rights advocates see man as misanthropic those circumstances will constantly expand. Under any human-rights discourse, the individual will do less and will have less freedom, and the state will do more. For it is only the state that can perform the necessary task of protecting citizens from each other.

That state – in the form of its courts, and the rules and regulations that it generates in the name of human rights – is now expansive. So expansive, in fact, that Paine, who claimed ‘it is but few general laws that civilised life requires’, would be turning in his grave. For the human-rights advocate, the government does not ‘purloin from the general character of man’; it makes good the deficient general character of man. And it is not ‘but few general laws that civilised life requires’; it is an expansive network of general laws that civilised life requires.

Writing in 1835, Alexis de Tocqueville observed how democracies could be corrupted by an overbearing state that exercised authority like a parent over a child with the objective of keeping children in perpetual infanthood. This would happen when a government did too much, such as when it ‘provides for their security, foresees and supplies their necessities, facilitates their pleasures, manages their principal concerns, directs their industry, regulates the descent of property and subdivides their inheritances’ (3).

Having taken each citizen ‘in its powerful grasp’, the state then ‘covers the surface of society with a network of small complicated rules, minute and uniform, through which the most original minds and the most energetic characters cannot penetrate, to rise above the crowd’.

But most sobering of all is Tocqueville’s description of the way the overbearing state would sap man’s will: ‘The will of man is not shattered, but softened, bent, and guided: men are seldom forced by it to act, but they are constantly restrained from acting: such a power does not destroy, but it prevents existence; it does not tyrannise, but it compresses, enervates, extinguishes, and stupefies a people, till each nation is reduced to be nothing better than a flock of timid and industrious animals, of which the government is the shepherd.’ (See Why can’t the government get things done?)

Politics freed of legal constraints

A democracy requires rigorous and robust political debate. In a democracy, the political sphere must be sovereign. In particular, a government must be able to act on a popular mandate to determine a country’s laws and to implement them. In Rights of Man, Paine was mostly concerned with criticising the aristocratic influence that could curtail change by law and custom. Paine argued that ‘every age and generation must be as free to act for itself in all cases as the age and generations which preceded it’.

The case for a more general political sovereignty was made by the English jurist, William Blackstone. In his Commentaries on the Laws of England (1765-1769), he noted that parliament ‘hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving and expounding of laws’. In short, Blackstone noted, parliament can ‘do everything that is not naturally impossible’. Albert Dicey (1835-1922) in his Introduction to the Study of The Law of the Constitution (1885) reiterated Blackstone’s point, stressing how the common law and judiciary were subordinate to parliament: ‘judicial legislation is, in short, subordinate legislation, carried on with the assent and subject to the supervision of parliament’. Dicey’s view – that politics and law were separate disciplines and that politics was sovereign – was a hallmark of the relationship between British judges and parliament until relatively recently.

In 1885, Dicey noted that ‘a modern judge would never listen to a barrister who argued that an act of parliament was invalid because it was immoral, or because it went beyond the limits of parliamentary authority’. Some 130 years later, today’s modern judges will regularly listen to a barrister who argues that an act of parliament should either be given a constrained interpretation to make it compliant with human-rights laws or that it should be declared incompatible with human-rights laws. Today, the will of the people often yields to the will of judges acting on the authority of human-rights laws.

The proper relationship between politics and law has been strained by human-rights laws. As long ago as 1948, Winston Churchill observed that the proposed European Convention on Human Rights would be ‘sustained by law’. For many decades this meant little, but as judges since the 1970s, particularly in Europe, became more activist, these rights sustained by law have been used to trump and constrain legislation and political ideas. A generation ago, a British judge of the European Court of Human Rights, Sir Gerald Fitzmaurice, warned of the danger of that court placing governments in a straitjacket. He described it as:

‘virtually an abuse of the powers given to the [European Court of Human Rights]… to hold a government, or the executives or judicial authorities of a country, guilty of a breach of the convention merely by virtue of the existence, or application, of a law which is not itself unreasonable or manifestly unjust, and which can even be represented as desirable in certain respects. That there may be grounds for disagreeing with or disliking the law concerned or its effects in given circumstances is not, juridically, a justification. No government or authority can be expected to operate from within a straitjacket of this sort and without the benefit of a faculty of discretion functioning within defensible limits. Equally, breaches of the Convention should be held to exist only when they are clear and not when they can only be established by complex and recondite arguments, at best highly controversial, as much liable to be wrong as right.’

That was in 1979. Three decades on, the straitjacket is in place and the cords have been tightened.

Arguments, which are in reality about public policy or ethics, are increasingly contested in court where the litigants argue over what human-rights law requires. Accordingly, even the public-policy issues or ethics that lie behind these cases tend to get sidelined because the court is only interested in the requirements of human-rights law, which has often got little to do with right or wrong. Politics and ethics as autonomous spheres are being constrained by what human rights law allows. (See The lawyers riding roughshod over democracy; and A distorted view: liberate social policy from the influence of human rights.)

Professor John Gray has noted how human-rights laws are neutering politics. Writing in 1995, he observed how, particularly in America, ‘basic questions about liberty and the restraint of liberty are decided by legal and not by political reasonings; by judicial review, not be legislation’ (4). Twenty years on, what he said about America clearly applies with equal force in the UK, as Gray recognised recently when arguing that ‘human rights are turning into a comforting dogma through which we try to escape the painful dilemmas of war and politics’.

Gray, however, does not draw a distinction between natural rights and human rights. Yet there is nothing in the natural-rights approach to bring it within what Gray calls ‘the utopian liberal project of abolishing politics’. On the contrary, the rational-man approach of Paine shows how a natural-rights approach supports and requires a vibrant and autonomous political sphere. Gray’s target should be human rights rather than ‘liberal’ politics in general.

Conclusion

Too many academics, lawyers and other commentators have failed to identify what is unique about human rights. Once it is appreciated that the human-rights discourse is essentially about claiming a legal right to something from the state then the rift with natural rights becomes clear. Where natural-rights advocates celebrate liberty, a restrained state and robust political debate, human-rights advocates talk of man’s weakness, an expansive state and a politics that is constrained by laws.

The advocates of human rights may, as they claim, intend to make humanity better. They may, like Sadiq Khan – a former human-rights lawyer – believe that their human-rights advocacy has ‘improved countless people’s lives in this country and… across Europe’. But practice follows from theory, no matter how poorly articulated or understood. A theory that is premised on the view that man isn’t rational goes searching for human error and frailty. And when it finds it, this theory argues for the state to regulate and provide redress. This is a theory of human rights that can only result in, to use Tocqueville’s words, a nation that ‘is reduced to be nothing better than a flock of timid and industrious animals, of which the government is the shepherd’.

Jon Holbrook is a barrister based in London. Follow him on Twitter: @JonHolb